- - - IN THIS
ISSUE - - -
CASE LAW REVIEW:
ARTICLES:
Jeffrey Toobin, The Driver, The New Yorker Magazine, June 10, 2002
Checks on the Death Penalty, The Washington Post, June
18, 2002
Vincent Schiraldi and Mariam M. Bell, Prison Rape Is No Joke, The Washington Post, June 13,
2002
* * * * *
We are again delighted to include in this issue a case comment
provided to us by The Honourable Mr. Justice Gilles Renaud of the Ontario Court
of Justice.
R. v. Robinson, C35651, June 3, 2002, (Ont. C.A.)
A Case Comment on Maintaining
Innocence at Sentencing
Introduction:
No authority is required for the proposition that the presence of remorse is a signal mitigating feature. But what of the absence of remorse? Indeed, what of the accused who is declared by a finding of guilt to be an offender, but who maintains that he or she is innocent? In this brief case comment, attention is drawn to the particular situation discussed in R. v.Robinson, C35651, June 3, 2002, (Ont. C.A.), as being indicative of the difficulties encountered at the sentencing stage when the court is confronted by claims of innocence.
Discussion:
In the very recent endorsement in Robinson, Doherty, Goudge and MacPherson JJ.A. observed that the accused was entitled to maintain his innocence at the sentencing stage of the trial. Refer to para. 18. Indeed, the Court noted that it was prepared to assume without deciding that restorative justice principles could operate in a case involving an individual who maintained his innocence. See para. 19. At all events, the panel held that a jail term was required to sanction the repeated acts of sexual assault and touching involving a young teenager and a mature individual whose position as a teacher would have led him to understand the harm done to children in such predatory sexual misconduct. Refer again to para. 19.
In this vein, it may be of assistance to point out other judgments in which the issue of an accused person maintaining innocence at the sentencing stage and thus being unable to advance any element of remorse.
As can easily be understood, thus, the question of the significance of remorse becomes quite controversial in cases in which the denial of guilt is rejected by the trier of fact. A first example arises in a case of sexual offending, R. v. English, [1991] N.J. No. 374, 95 Nfld. & P.E.I.R. 147 (Nfld. S.C., T.D.), Lang, J. observed at p. 149, para. 5, that the worst trial experience he had known in 41 years involved Mr. English, a Christian Brother convicted of a variety of sexual offences. His Lordship’s obvious opinion was the offender ought to have pleaded guilty to spare the complainants further harm. Doubtless the sentence reflected this reduced potential for rehabilitation. This is proper so long as the sentence was not increased to reflect a lack of remorse. In this respect, note that the sentence was reduced on appeal. See [1993] N.J. No. 252, 111 Nfld. & P.E.I.R. 323, 84 C.C.C. (3d) 511 (C.A.).
A second example is taken from R. v. Davis, [1993] N.J. No. 257, 110 Nfld. & P.E.I.R. 299 (Nfld. S.C., T.D.). The trial judge noted at para. 19 that "in this case Mr. Davis still maintains that he has essentially done no wrong. Such denial in the face of what I consider to be overwhelming evidence in most cases militate against him and against his chances for rehabilitation". The court noted further: "Any prospects for successful rehabilitation depend on the cooperation of Mr. Davis and on an acceptance by him of appropriate professional intervention. Hopefully, he will avail himself of whatever help can be found within the penal system as the incarceration of Mr. Davis is a foregone conclusion. There are programs available and hopefully he will take advantage of them." Refer to para. 22.
The potential controversy becomes more acute in the case of an offender who wishes to appeal, and who expresses no remorse, being of the view that their innocence was wrongly rejected. Consider R. v. Webster, sub nom (W.) (A.G.), [1994] P.E.I.J. No. 29, 146 Nfld. & P.E.I.R. 62 (S.C., T.D.), affirmed [1996] P.E.I.J. No. 109 (C.A.). Campbell, J. convicted the accused of multiple counts of sexual offences. The total sentence imposed was nine years. The court stated at para. 19: "The pre-sentence report notes that A.G.W. continues to maintain his innocence in these charges and indicated to the writer that he will continue to work toward clearing himself from them."
Whether A.G.W. did or not is beside the point; what is of significance is the potential prejudice to a person who maintains his or her innocence and who wishes to appeal any finding of guilt. It is not rare for credibility-based verdicts of trial judges to be reversed upon appellate review in cases of sexual offences. It would be quite prejudicial were an accused whose denial of wrongdoing did not raise a reasonable doubt is asked to admit that indeed he did sexually assault the complainant. To refuse to do so may lead to the following judgment: "I note as well the expression of regret stated in the Pre-sentence Report. There is however no remorse expressed. In fact you maintained your innocence. The lack of remorse does concern me." See R. v. Allen, [1993] N.S.J. No. 507, 127 N.S.R. (2d) 115 (S.C., T.D.), at para. 13.
A further example is found in R. v. Lewis, [1993] N.S.J. No. 466, 129 N.S.R. (2d) 312 (T.D.), in which Scanlan, J., was concerned with an accused who was convicted of six counts of indecent assault and one count of sexual assault. The offences involved assaults on six separate young girls over the period from 1958 to 1989. In imposing a total of three years' imprisonment, the Court observed, at paras. 6 and 7:
Mr. Lewis, I have reviewed the
pre-sentence report. I note from that
report that you are presently 65 years old.
You are one of nine children.
You and four of your siblings were never married. I note as well that even though you did not
receive an extensive formal education you were able to provide for yourself
through fishing and forestry work. You
fostered a friendship with Mrs. P. and boarded with her for some 25 years. I would again point out that it was while
you were staying with Mrs. P. that you assaulted children that came into her
house.
Mr. Lewis, I note from the pre-sentence
report that you do not accept responsibility for your actions and again here
today in court you made the same indication.
You have indicated, according to the report, that your victims are
simply attempting to injure your reputation and I quote from the report 'out of
concern that I may inherit the old woman's property'. These comments, Mr. Lewis, would indicate to me a lack of remorse
or at least a failure to accept responsibility for your actions. It also indicates to me as regards sentencing
on this matter that there is a need not only for general deterrence but also a
need for specific deterrence
It
cannot be gain said that this "attitude" must have influenced the
court to impose a greater sentence than in the case of a repentant individual
for whom specific deterrence is of lesser import.
Jenkins,
J., remarked in R. v. S. (C.B.) [1994] P.E.I.J. No. 90, 124 Nfld. &
P.E.I.R. 91 (T.D.), “… the offender's remorse is questionable. He still does not acknowledge most of the
offence for which he has been convicted.
In the trial process, it was necessary for the victim to testify
twice. The offender's limited remorse
may be impeded by his apparently low intelligence. According to the victim's
impact statement, the offender still wants to see her in visits supervised by
Social Services. He apparently fails to
appreciate the gravity of the offence, its effect on the victim, and the moral
revulsion by which it is viewed by others." Refer to para. 14.
Note
as well the words of Haliburton, J., in R. v. Gale, [1994] N.S.J. No.
338, 133 N.S.R. (2d) 263 (T.D.), at para. 35:
"Obviously, there is a lack of remorse as Crown counsel has pointed
out. But as defence counsel has pointed
out, Mr. Gale was entitled throughout the trial to contend that he was innocent
of the charges and he is still entitled, I suppose to maintain that contention,
in spite of the fact that he has been convicted. In any event, whatever the circumstances, the lack of remorse,
while it might be a mitigating factor or a favourable factor, if it were
present, cannot be considered to be an aggravating factor in sentencing."
The
corollary proposition was expressed thus:
"Remorse, viewed from another point of view, would indicate an
acknowledgement by Gale that he has a problem and would perhaps reflect the
beginning of rehabilitation or reformation. That would have been a favourable
factor which, of course, I cannot take into account." Refer to para. 36.
Conclusion:
On
balance, it is not a simple thing to factor in the views of an “offender” who
denies offending. Further guidance is
required from our appellate courts.
* * *
The following
article appeared in The New Yorker Magazine, dated June 10, 2002.
The Driver
By Jeffrey Toobin
In 1999, a police officer named Charles Schwarz was convicted of participating in one of the most notorious crimes in recent New York history. A jury in Brooklyn federal court found that Schwarz had assisted in the sexual assault of Abner Louima, a Haitian immigrant, in the bathroom of a station house in Brooklyn. (During the trial, another officer, Justin Volpe, had pleaded guilty to the assault itself, which took place on August 9, 1997.) The Louima case probably marked the lowest moment of the Giuliani years – a grotesques abuse of a black man by two white cops.
Earlier this spring, the Court of Appeals reversed Schwarz’s convictions, and the reaction to the decision demonstrated just how much the atmosphere around the case had changed. The three tabloids – the News, Newsday, and the Post – celebrated Schwarz’s release with similar front-page headlines: “FREE,” “HE’S HOME,” and “HE’S OUT.” The Times welcomed Schwarz’s return to his mother’s home on Staten Island with a dewy portrait. “The second thing Charles Schwarz did on his first full day out of prison was shower,” the article, by AlanFeuer, began. “His hands were not shackled on the way to the tub.” The first thing Schwarz did, according to the article, was “open his eyes…lingering in bed…He could sleep as long as he wanted. And that felt best of all.”
The story of Charles Schwarz belongs to a suddenly distant era, when the public image of New York police officers was shaped largely by their fraught relations with the city’s racial minorities rather than by their heroics on September 11th. In part, Schwarz had the good fortune to be caught up in the slipstream of the city’s renewed appreciation for its police force, but, more important, he was the beneficiary of the indefatigable, and largely unrefuted, efforts of a pro-bono attorney, a newspaper columnist, and a steadfast wife. Through their work, Schwarz’s incarceration seemed to reflect the sensibilities of a bygone age. The only problem with this tidy resolution to the story is that Schwarz faces a retrial in Brooklyn, where jury selection begins on June 3rd. And the available evidence in the case suggests that he may well be convicted again.
At the age of thirty-six, despite almost three years in prison, Charles Schwarz carries his beefy six-foot-one-inch frame with a confident swagger. I talked with Schwarz and his wife, Andra, in the midtown office of his lawyer, Ronald P. Fischetti, one recent Friday afternoon. Each played a distinct role in their real-life ensemble cast: Chuck was the stoic hero, Andra the adoring helpmate, Ron the sarcastic wise guy.
Schwarz’s mother was a nurse, his father a train conductor and brakeman who died when Chuck was a teen-ager. After graduating from high school, in 1983, he enlisted in the Marines, where he was, as he told me, “promoted meritoriously to corporal.” Schwarz went on, “Being a marine is not just a statement. I belonged to what I believe is the finest military organization in the world.” Honorably discharged in 1988, he joined the police force the following year. “It was sort of an extension of the Marine Corps, being a police officer – the sense of camaraderie,” Schwarz told me. “Having a military background, it just seemed like a typical progression.”
Schwarz described his life as a passage from one team to another – high school football squad, Marine Corps, police force, anti-crime precinct unit. The worlds that Schwarz has chosen have been men’s clubs in varying forms, and he has the unnerving habit of ignoring whatever his wife says and continuing to talk without acknowledging that Andra has even spoken. Schwarz remains adamant about his innocence and appears astonished that he must defend himself once more. “They’re making me out to be a sex offender,” he said. “There’s nothing worse than making me a sex offender. Just think what that does to you. It takes a whole lifetime to build a reputation. Within a matter of minutes, my whole life came to a crashing halt.” He has no job, and Andra long ago quit her position as a paralegal to work full time on his defense. They often care for Chuck’s brother, John, who became a quadriplegic after a swimming pool accident. Chuck and Andra sold their house for living expenses and are now staying with relatives.
Schwarz speaks candidly about the despair he felt in prison. “You have your highs and lows, most of them lows,” he said. “I would call Ron’s office as much as possible, because talking to him would raise my spirits.” Fischetti smiled and said to his client, “And you remember what I would say to you? ‘Be a fucking marine. Stand up tall. Don’t worry. We’re going to get you out.’” At last, Schwarz has caught up with Fischetti’s confidence. “I feel very good going into this trial,” he told me. “The climate has change. There is not such an anti-police sentiment out there. Now a lot more facts about my case are public.”
Ron Fischetti’s mission has been to make those “facts” public. Fischetti has been among the top criminal-defense attorneys in New York for a generation. At sixty-six, his ruddy face has a glow that looks not so much weathered by time as burnished by prosperity. He grew up in Brooklyn and went to night law school at St. John’s, in Queens, graduating in 1961, “in the top ten percent of the bottom third of my class,” he says. He spent the early years of his career as a functionary of the Brooklyn Democratic machine and only came to trial work in 1974, when he helped defend Representative Bertram Podell in a federal corruption case. Fischetti lost that one to Rudolph Giuliani, then a young federal prosecutor, but he soon built a thriving practice, first as a Mob lawyer, representing Gene Gotti (John’s younger brother), among others, and then toiling in the more genteel precincts of white-collar crime. Today, Fischetti lives in Greenwich, Connecticut, and plays golf on the storied links of Winged Foot.
Before a recent hearing in the Schwarz case, Fischetti positioned himself before the dozen or so reporters in the gallery and gave a weary shrug. “I can’t take this anymore,” he announced as he perched on the wooden barrier to the well of he courtroom. “No more innocent clients after this one. Usually, you try a case, you win, you lose – whatever happens, you go out for a drink and then you come back to work tomorrow. But this? This I can’t take anymore. No more innocent clients for me.” This speech, which Fischetti has given in various forms throughout the three years he has represented Schwarz, amounts to a kind of jujitsu move to leverage his reputation. Sure, I’m usually a cynical hired gun, he says, but not this time. He’d never try to sell Gene Gotti’s innocence this way. “I am not a ‘cause’ lawyer,” Fischetti told me later. “But this is my cause.”
In front of Fischetti sat Steve Dunleavy, the Post columnist who has championed Schwarz’s innocence in more than fifty columns during the past few years. Now sixty-four years old, Dunleavy moved to New York in the nineteen-sixties, but he still sounds as if he had just stepped off the plane from his native Australia. A veteran of every form of tabloid journalism – his pompadour was once a familiar sight on “A Current Affair” – Dunleavy has worked for the Post on and off for about two decades. Known both for his nicotine rasp and for his lunchtime vodka-and-tonics, Dunleavy recalls an earlier day in New York journalism, and he has made Schwarz the focus of an old-fashioned crusade.
Dunleavy generally ignores the details of the case, writing instead as if Schwarz’s status as “the most innocent man in America” were a given. Most of Dunleavy’s pieces concern such things as the toll on Schwarz’s family, the unfairness of his trials, and “this bizarre federal prosecutor (read that persecutor) Alan Vinegrad.” (I knew Vinegrad when I worked as a prosecutor in Brooklyn, in the early nineties.) By Dunleavy’s own admission, he has a reflexive sympathy for police officers, and in the Louima case that sentiment initially extended to Justin Volpe. “I’m the first to admit that I didn’t even believe that Volpe was involved. I didn’t believe it happened at all,” Dunleavy told me. But after Volpe pleaded guilty Dunleavy’s passion for Schwarz’s cause doubled.
As we talked on April 3rd, before Judge Reena Raggi took the bench, Dunleavy noted with some satisfaction that his campaign for Schwarz seemed to have made inroads into public opinion. He pointed out that earlier court hearings had drawn throngs of protesters to the courthouse, but on this day only a single man came out to taunt the defendant. Since September 11th, many of the police department’s former antagonists, even the Reverend Al Sharpton, have moved on to other causes. “They gave a war, and no one’s coming anymore,” Dunleavy told me. “The public at large now accepts that this case against Chuck is a bullshit story.”
On Friday night, August 8, 1997, Abner Louima, a thirty-year-old naturalized citizen from Haiti with no criminal record, went out with a group of friends to Club Rendezvous, a night club on Flatbush Avenue, in Brooklyn. When the club was closing, at about 4 a.m., there was a disturbance on the sidewalk involving other customers, and police officers from the Seventieth Precinct responded, among them Justin Volpe and his partner Thomas Bruder, and Thomas Wiese and his partner, Charles Schwarz.
Shortly after the officers arrived, Volpe got into a confrontation with John Rejouis, a black off-duty New York City corrections officer. Rejouis tried to show his badge to Volpe, who slapped it out of his hand and pushed him. The crowd, including Louima, reacted indignantly to Volpe’s treatment of Rejouis, and Schwarz and Wiese, assisted by Officers Eric Turetzky and Mark Schofield, subdued Louima and placed him in handcuffs. At just about this time, Louima’s cousin Jay Nicholas ran up and punched Officer Volpe in the side of the head. Volpe and several other officers chased Nicholas, but he was never caught.
Schwarz drove Louima toward the Seventieth Precinct station house for booking; his partner, Wiese, sat in the passenger seat. En route, they heard a description of Volpe’s assailant broadcast over the police radio. The description matched Louima (even though it was Nicholas who had attacked Volpe), and Wiese radioed that they had in custody the man who had punched Volpe.
At about 4:35 a.m., Louima arrived at the station house, and the critical events began to unfold. From the start, Louima was treated not as an ordinary prisoner but, rather, as someone who had assaulted a cop and thus needed to be taught a lesson. For Schwarz and his colleagues, the precinct cops were a team, and they had to stick together. After Schwarz and Wiese brought Louima to the front desk, Schwarz searched Louima, and then took his booking information. During this process, Louima’s pants and underwear dropped to his knees, and no one helped pick them up.
Volpe separately returned to the seven-oh, as the precinct is known, and prepared for his assault. He broke the wooden handle off of a broom and borrowed a pair of leather gloves from another officer. After Schwarz finished Louima’s paperwork, the sergeant on duty ordered Schwarz to place Louima in a holding cell in the back of the station house. Louima was then taken to the back of the building, but instead of going to the holding cells he was escorted down a different corridor, to a bathroom.
Who took Louima to the bathroom? To this day, that remains the central issue in the case. As investigators began piecing the story together in the days after the attack, they heard from Officer Turetzky, who was present at the Club Rendezvous melee, that he saw Schwarz take Louima down the corridor toward the bathroom. Officer Schofield likewise said that he saw Schwarz walk Louima toward the back of the precinct. Louima has repeatedly asserted that he officer who led him was the “driver” of the police car – Charles Schwarz.
Volpe followed the “driver” and Louima into the bathroom and warned Louima that he would kill him if he told anyone about what he was going to do. When Louima yelled, the “driver” put his foot on his mouth and told him to shut up. The “driver” then lifted Louima by his handcuffs and Volpe rammed the broom handle into Louima’s rectum, rupturing his bladder and rectum. (The attack led to massive internal injuries, causing Louima to be given a colostomy tube to help him urinate.) Volpe put the broom handle in front of Louima’s face. “That’s your shit,” he said. His pants still around his knees, Louima was then taken to a holding cell. In his initial recounting of the attack, Louima told investigators that he had been assaulted with a toilet plunger. It turned out that Louima was mistaken about the weapon, but he had given the attack its macabre symbol.
On May 4, 1999, Volpe and Schwarz went on trial in Brooklyn federal court on charges of violating Abner Louima’s civil rights by sexually assaulting him. The evidence against Volpe was overwhelming. Not only had Louima identified Volpe as his principal assailant but Volpe had boasted to several other officers that he had “broken” the prisoner who had (he thought) punched him on the street. In the middle of the trial, on May 25th, Volpe suddenly decided to plead guilty. The guilty plea at the moment was an inexplicable legal strategy for Volpe, who got no credit for sparing the government a trial, and was sentenced to thirty years in prison. As for his accomplices, during his guilty plea Volpe told Judge Eugene H. Nickerson, who was presiding over the case, that he had assaulted Louima with “another” officer present, whom he did not name.
The jury trial continued, with Schwarz as the only defendant on the sexual-assault charges. At that time, Schwarz was represented by Stephen Worth, a veteran attorney who specializes in defending police officer. (Worth won an acquittal for one of the four police officers who shot Amadou Diallo to death on his doorstep in the Bronx on February 4, 1999.) During pretrial proceedings before Judge Nicerson, Worth had struggled to find a way for the jury to hear Officer Thomas Wiese’s most recent account of the night in question.
Wiese’s story had evolved over time. When he first described his role, just a few days after the assault, he told a representative of the Patrolmen’s Benevolent Association, the police union, that he and Schwarz were at the front desk during Volpe’s attack on Louima. At that point, Wiese said he know nothing about what happened to Louima. But by August 17th Eric Turetzky had become the first officer to break the blue wall of silence and had identified Schwarz as the cop who walked Louima toward the bathroom. On that day, Wiese told a very different story to an investigator form the Brooklyn district attorney’s office, managing to exculpate his partner without admitting any wrongdoing on his own part. Wiese said that he, not Schwarz, had accompanied Louima. Volpe, Wiese said, had told him that he wanted to take Louima into the bathroom to “clean up,” so Wiese waited for them outside. As Volpe tortured Louima, Wiese said he heard nothing except some banging noises. Indeed, Wiese said that he spent the time playing with a puppy named Midnight, whom officers in the precinct had adopted. After a few minutes, Wiese and the dog entered the bathroom and discovered Louima writhing in agony on the floor. As far as Wiese knew, Schwarz was at the front desk during the attack.
Wiese’s tale was unconvincing. No witnesses testified that they saw Wiese take Louima to the bathroom, and it was hard to believe that anyone could obliviously play with a dog while a man was tortured a few feet away. Still, Wiese’s story was probably the best evidence that Worth had on Schwarz’s behalf. The prosecutors believed that Wiese’s entire story was false and charged him with conspiring to obstruct justice; Wiese, taking the Fifth during the trial to protect himself, couldn’t testify for his former partner. Worht asked Judge Nickerson to admit Wiese’s statement to investigators under a variety of legal theories, but the Judge refused, calling Wiese’s version inadmissible hearsay. In the end, the jury did not hear Wiese’s account.
Worth excoriated Louima for a lie he told investigators in the first days after the attack: that the cops who brutalized him had said, “There is no more Dinkins administration – it’s Giuliani time.” (Louima said he had invented the comment at the suggestion of a family adviser, who feared that the attack would otherwise be ignored.) In a dramatic high point, Worth had Schwarz stand up in the courtroom and asked Louima if this was the man who held him while Volpe brutalized him. Louima could not say for sure, insisting only that the second man in the bathroom was the “driver” of the patrol car.
After Volpe pleaded guilty, Worth faced a difficult tactical decision. Should he call Volpe as a witness for Schwarz? At that point, Worth didn’t know Volpe would testify that it was Wiese, not Schwarz, who had been in the bathroom. (Volpe’s lawyer, Marvyn Kornberg, and Worth detested each other, and there was little communication between them.) Even if Volpe would exculpate Schwarz, it wasn’t clear that the jury would believe him. In the end, Worth did not call Volpe to the stand. On June 8, 1999, the jury convicted Schwarz of conspiring to violate, and of violating, Louima’s civil rights by assaulting him in the bathroom of the Seventieth Precinct.
Andra Schwarz was distraught at her husband’s conviction. A petite, determined woman, who often wears “Free Chuck Schwarz” T-shirts around Fischetti’s office as she assists in the defense, Andra was working as a paralegal in a midtown firm when her husband was arrested. “We thought we would need an appeals person, a new-trial person, and as we were getting names form people Ron’s name kept coming up,” she told me. Fischetti’s buoyant confidence captivated both Andra and her husband, who had been remanded to the Metropolitan Correctional Center, in downtown Manhattan. Fischetti read the transcript of the trial, sized up his potential client, and took the case pro bono.
Fischetti decided that he had to change minds about the facts on which the jury had convicted Schwarz, so he went to work on the press. “There was no way to get this case reversed unless the Circuit Court of Appeals had some doubt as to his guilt,” Fischetti told me. “You had to convince the bench that maybe an innocent man was convicted because of the nature of the crime. When we started, he was seen as almost worse than Volpe. Chuck has his foot on his neck. I think the guy that hold him down is almost worse. We had to turn that attitude around. So I spent a lot of time with reporters.” Dunleavy, with his noted affinity for the police, was the easiest reporter to recruit, and he began writing about the case regularly when Fischetti took over. Schwarz had a new quarterback for his legal team.
The first turning point in public perception came when Craig Horowitz wrote a five-thousand-word cover story about the case for New York, on October 25, 1999. In the article, Horowitz wrote that “in the four months since the verdict was delivered, compelling doubts have been raised about Schwarz’s participation in the crime.” According to Horowitz, “the jury never got to hear critical information that plainly suggests another version of what happened”; namely, Volpe’s and Wiese’s descriptions of what went on in the bathroom. This was true; the jury had not heard Volpe’s or Wiese’s version. And the article did raise provocative questions about the case: What if Volpe had testified? What if the jury had heard Wiese’s statement? What if Schwarz had taken the stand in his own defense? What if Schwarz had had a better lawyer? As it turned out, those questions would all have specific answers.
After the ops were first indicted, Judge Nickerson divided the case into two trials. In the first, Volpe had pleaded guilty and Schwarz had been convicted of the assault on Louima. But there would then be a second trial, where Schwarz, his partner, Thomas Wiese, and Volpe’s partner, Thomas Bruder, would face charges that they had conspired to obstruct the federal investigation by lying about Schwarz’s role in the attack on Louima. The issues in the two trials were not identical, but they were very similar, and most of the same witnesses would reprise their testimony. Once again, if he jurors believed that Schwarz had never been in the bathroom with Louima, they would have no choice but to acquit him. With Ron Fischetti at the helm, Chuck Schwarz would have another chance at vindication.
This trial, about whether the cops had blocked the investigation of the assault on Louima, which began in Brooklyn on February 7, 2000, focused more on the reactions of the police officers involved than on the details of the attack itself. But the theme was the same: these officers would protect their own – whether from a man who the thought had hit a cop on a sidewalk or from the investigators who they knew were drawing close. As the Internal Affairs Bureau of the police and, later, the F.B.I. began asking questions, during the week after the attack, Schwarz, Wiese, and Bruder telephoned one another fifty-five times. Schwarz and Wiese spoke to each other thirty-seven times. During those same few post-attack days, Schwarz also repeatedly sought advice from Anthony Abbate, a disgraced former cop whom the N.Y.P.D. had fired in 1996 for a series of disciplinary infractions. In all, prosecutors argued, the trial was a case study in the blue wall. “The torture in this case is committed by people who are aberrations. That kind of abuse is never going to happen very often,” Peter Neufeld, one of Louima’s civil lawyers, said. “The real crime is how many people are willing to cover up. In the more routine type of brutality, people will lie – that’s a more systemic problem.”
The second trial gave Fischetti the chance to learn from Schwarz’s unsuccessful defense in the first. Fischetti called Volpe, who testified that it was Wiese, not Schwarz, who witnessed the assault; the jury also heard Wiese’s statement that he had been playing with the puppy during the assault and that Schwarz was nowhere near the bathroom. And this time Schwarz testified in his own defense. Wiese had originally said that he and Schwarz were at the front desk when Volpe attacked Louima. This presented a problem for Schwarz because none of the officers remembered seeing him there at the time of the attack. If Schwarz wasn’t at the front desk and he wasn’t in the bathroom, where was he? In his testimony, Schwarz tried to finesse this problem by saying that during that time he happened to go out to search his patrol car, to see if anything had been left behind.
The jurors’ verdict in the second trial showed what they thought of Schwarz’s story. On March 6, 2000, he was found guilty of conspiring to obstruct justice, and Wiese and Bruder were convicted as well. In his column the next day, Dunleavy wrote, “What happened on the sixth floor in a so-called palace of justice called the Brooklyn Federal Courthouse yesterday was an abortion.” For his convictions in the two trials, Schwarz was sentenced to a hundred and eighty-eight months in prison. Wiese and Bruder received five-year sentences.
Fischetti, undeterred, started working on two tracks. His media offensive continued, this time focusing on reporters who had not covered either of Schwarz’s trials. Fischetti presented his client’s case to “60 Minutes” and to Bob Herbert, an Op-Ed columnist for the Times. Ed Bradley’s story, broadcast on February 18, 2001, featured interviews with Schwarz, Wiese, and Bruder, as well as with several jurors from the first trial, who said they would not have voted to convict Schwarz if they had know that Volpe would testify that Schwarz never entered the bathroom. The story noted that Bruder was “absolutely” sure that it was not Schwarz who took Louima to the bathroom; that Turetzky was unsure whether it was Schwarz or Wiese who walked Louima out of the bathroom; and, finally, that Schwarz and Wiese resembled each other. Citing the “60 Minutes” segment, Herbert argued, “It appears very likely that one of the imprisoned police officers – Charles Schwarz, who is serving 15 years in a federal penitentiary – did not participate in the attack.” Of course, Dunleavy never relented on “the lynching of this former Marine, great cop and wonderful husband.”
Fischetti’s other strategy led to the Court of Appeals. In a typical bravura touch, Fischetti and the appellate specialist Diarmuid White called the first point in their brief “The Imprisonment of Charles Schwarz Is a Denial of Due Process Because He Is Actually Innocent.” As Fischetti cheerfully acknowledged to me, he know he shouldn’t be making this kind of argument to the Court of Appeals. Appellate judges are only supposed to consider interpretations of law, not second-guess the factual decisions made by jurors. “I knew we weren’t going to win on that ground,” Fischetti told me. “But we had to keep telling them, ‘You got the wrong guy here. He wasn’t in that bathroom.’” Fischetti’s other primary arguments were more technical – that prosecutors had removed too many white jurors, and that they had withheld exculpatory information from the defense. The three-judge panel heard arguments in the case on July 19, 2001, and issued its ruling almost eight months later, on February 28, 2002.
The decision stunned everyone on both sides of the case. The judges – John M. Walker, Jr., Jose A. Cabranes, and Chester J. Straub – reversed Schwarz’s conviction in the assault case because his lawyer in the first trial, Stephen Worth, had an unwaivable conflict of interest. It was a huge victory for Schwarz, even if the opinion said nothing about whether he was guilty or innocent. Before the first trial, the prosecutor, Vinegrad, had informed Judge Nickerson that Stephen Worth’s firm had a contract to represent the police union, the P.B.A. Because of this potential conflict of interest – Louima was suing the P.B.A. as well as the city for money damages in a separate civil case – Vinegrad said that Nickerson should address whether Worth could still represent Schwarz. Worth had protested vehemently, arguing that there was no real conflict and that his removal would deny Schwarz his right, under the Sixth Amendment, to the counsel of his choice. To resolve the issue, Nickerson appointed a separate lawyer to advise Schwarz. After a hearing, Schwarz decided that he wanted to stay with Worth. “I’m fully aware of the conflicts,” he told the Judge. “I also understand there are no do-overs with this case. Once I make my decision that’s it.” Nickerson allowed Worth to remain on the case.
At the oral argument of the appeal, none of the three judges asked a single question about the conflict-of-interest issue. This was not surprising, because reversals based on attorney conflicts are extremely rare, especially when the trial judge airs the decision fully at the beginning of the case, as Nickerson did here. Yet, according to Judge Walker, the conflict was so obvious and so pernicious that Worth could not possibly have adequately represented Schwarz, even though Schwarz had known about the conflict. The Appeals Court therefore granted Schwarz a new trial. The court also dismissed the federal obstruction-of-justice convictions against all three defendants, because the evidence showed only that they may have obstructed a state investigation by the Brooklyn district attorney, not a federal grand-jury investigation. Such highly technical grounds for reversals persuaded partisans on both sides of the case that something else was at work besides the judges’ stated rationale. “They just didn’t like the case,” one lawyer said. After thirty-three months in prison, Schwarz would get his-do-over after all.
It is risky to predict the outcome of a third trial. At a recent pretrial hearing, Judge Raggi, who took over the case after the death of Eugene Nickerson earlier this year, said, “Many different versions of this incident have been told by different witnesses and sometimes by the same witnesses.” Louima has now described the attack so many times that there are inconsistencies in his account. Indeed, Judge Raggi recently ruled that Vinegrad should have disclosed earlier that Louima’s family adviser quoted Louima as once saying that four officers had attacked him in the bathroom. (Louima denies ever saying this.) Other government witnesses have problems too. Turetzky has changed details – about such things as whether Louima was on Schwarz’s left or right as they went toward the bathroom. Schofield, the other cop who says that Schwarz walked Louima toward the back of the precinct, took some time to come forward and has told a questionable story about how Volpe came to use Schofield’s gloves in the attack. Fischetti has hinted that more damaging information will emerge about the prosecution’s witnesses.
As much as the public has embraced the police force, there have been few changes in the system that gave rise to the Louima case and cover-up. Louima settled his civil lawsuit against the city and the P.B.A. for $8.75 million and moved to Florida. In an apparently unprecedented part of the settlement, the P.B.A. paid $1.625 million toward the total award. The P.B.A. has taken some modest steps to prevent potential conflicts of interest among lawyers when police officers come under official scrutiny. But the union’s sympathies remain with Schwarz; the P.B.A.’s website links to Freeschwarz.com. After all this time, the team that have meant the most to Schwarz – the P.B.A., which stood by him, the precinct cops who testified for him, the legal team that took on every challenge – have kept up the fight.
The campaign for Schwarz stands as a model of media-age advocacy, one that has little to do with the facts of the case. The Court of Appeals relied on arcane legalisms. Dunleavy used invective and assertion. After Vinegrad obtained a new indictment against Schwarz for perjury, based on his testimony in the second trial, Dunleavy took to calling the courthouse “the Vinegrad Villa of the Vicious.” Nat Hentoff, in the Village Voice, compared Vinegrad to Javert, of “Les Miserables” – “the very model of a relentless, mean-spirited prosecutor.” The fact that juries had twice found Schwarz guilty dwindled to the status of a footnote at best.
The transformation in public perception seems to have convinced Schwarz that he is now the real victim in this case. “He suffered a horrible crime. Nobody deserves what happened to him,” Schwarz said to me about Louima. “I understand that we both have suffered.”
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The following
article appeared in The Washington Post, dated June 18, 2002.
Checks on the
Death Penalty
NORMALLY, WHEN members of Congress gather to talk about the death penalty, it is to expand the list of crimes for which executions are imposed or to rein in death row appeals. Today, however, both houses of Congress will hold hearings on a bill that would, if passed, actually limit the use of capital punishment. The Innocence Protection Act, sponsored by Patrick Leahy (D-Vt.) in the Senate and William Delahunt (D-Mass.) and Ray LaHood (R-Ill.) in the House of Representatives, was first introduced more than two years ago. Since then more than half of all House members and 26 senators have signed on as co-sponsors. Many of these support the death penalty. Their backing for a bill that would ensure access to DNA testing for convicts and that would improve the quality of legal representation for capital defendants is evidence of the profound effect on public opinion of the continuing wave of death row exonerations.
Reasonable people disagree about the death penalty, but nobody can disagree that society should take extreme care to avoid executing innocent people. The recent history of the death penalty strongly suggests that many states have not been careful enough. Without question, innocent people have come within hours of being put to death. Substantial questions remain about the guilt of some who did not escape execution. Many states provide such low-quality lawyering to the accused that egregious miscarriages of justice are inevitable. Congressional action on this subject should not be controversial, especially considering the movement for reform at the state level and the wide bipartisan support in Congress for this bill.
Sen. Leahy means to mark up the bill quickly. Its prospects in the House, where Judiciary Committee Chairman James Sensenbrenner (R-Wis.) has reservations, are dimmer. But the bill's proponents should not compromise too much. To make a real difference, any bill will have to make DNA testing available to inmates and give states incentives to improve the fairness of future capital proceedings. The Innocence Protection Act offers some well-designed measures on both these fronts. While it is far from the abolition of capital punishment that we favor, to oppose it as insufficient would be as irresponsible as for death penalty proponents to reject it as unneeded. Congress should pass this bill.
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The following
article appeared in The Washington Post, dated June 20, 2002.
High Court:
Executing Mentally Retarded Unconstitutional
By Anne Gearan
WASHINGTON – A divided Supreme Court reversed itself Thursday and ruled that executing the mentally retarded is unconstitutionally cruel.
The most immediate effect of the ruling will be in the 20 states that allowed execution of the retarded up to now. Presumably, dozens or perhaps hundreds of inmates in those states will now argue that they are retarded, and that their sentences should be converted to life in prison.
The 6-3 ruling is confined to mentally retarded defendants convicted of murder and does not address the constitutionality of capital punishment in general.
The majority's view reflects changes in public attitudes on the issue since the court declared such executions constitutional in 1989. Then, only two states that used capital punishment outlawed the practice for the retarded. Now, 18 states prohibit it.
"It is not so much the number of these states that is significant, but the consistency of the direction of the change," Justice John Paul Stevens wrote for the majority.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented. The three, the court's most conservative members, telegraphed their views earlier this month, when they complained bitterly about reprieves the court majority had granted to two Texas inmates who claim they are retarded.
The court ruled in favor of a Virginia inmate, Daryl Renard Atkins, who was convicted of shooting an Air Force enlisted man for beer money in 1996. Atkins' lawyers say he has an IQ of 59 and has never lived on his own or held a job.
In the future, the ruling will mean that people arrested for a killing will not face a potential death sentence if they can show they are retarded, generally defined as having an IQ of 70 or lower.
The dissenting justices said the majority went too far in looking at factors beyond the state laws.
The majority puts too much stock in opinion polls and the views of national and international observers, Rehnquist wrote.
"Believing this view to be seriously mistaken, I dissent," Rehnquist said. Rehnquist omitted the customary word "respectfully" before "dissent."
The Justice Project, a group that monitors the criminal justice system for any inequities, applauded the ruling, saying it "reflects a growing national concern that the administration of the death penalty is unfair. This decision comes at a time when there is growing agreement among death penalty proponents and opponents alike that the capital punishment system is broken."
The case turned on the 8th Amendment's protection against "cruel and unusual punishments," and how to define those terms today.
Times change, and with them public sentiment about what is appropriate punishment for various crimes, the court has observed in the past. For example, at various times in the country's history it was considered acceptable to flog people in public, or to execute those convicted of rape.
Using elected legislatures as a barometer, the court majority concluded that the public no longer accepts the notion that execution is appropriate for a killer who may lack the intelligence to fully understand his crime.
"The practice ... has become unusual, and it is fair to say that a national consensus has developed against it," Stevens wrote for himself and Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.
"This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty," Stevens wrote.
Many mentally retarded defendants know right from wrong, but they are more likely to act on impulse or to be swayed by others in a group, Stevens wrote.
"Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."
Counting the 12 states that do not allow capital punishment at all, 30 states prohibit execution of the retarded.
The number of states that banned the practice increased ninefold between the court's last ruling on the issue and the time it heard arguments in Atkins' case. The court was forced to toss out a North Carolina case it originally selected to reconsider the retardation question last year, because that state banned the practice before the court could hear the case.
Virginia authorities argued that Atkins planned his crime and understood afterward what he had done. The state claimed he was no less culpable for the crime than a person of normal intelligence.
Atkins had 20 previous felonies on his record at the time of the killing, the state argued. Atkins gave a detailed confession to police when he was arrested, describing how he and an accomplice kidnapped the victim, forced him to withdraw cash from a bank teller machine and then drove him to a deserted field and shot him eight times.
O'Connor wrote the 5-4 decision in 1989 upholding execution of the retarded.
There was "insufficient evidence of a national consensus" against the executions to determine that they were unconstitutionally cruel and unusual, she wrote then.
President Bush has said he opposes executing the mentally retarded. Bush's successor as governor of Texas vetoed a ban on the practice.
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The following
article appeared in The Washington Post, dated June 13, 2002.
Prison Rape Is
No Joke
By Vincent Schiraldi and Mariam M. Bell
Historic legislation was introduced this week to combat the epidemic of prison rape -- a scourge that is estimated to affect some 175,000 Americans annually. Normally fodder for stand-up comics, prison rape is in fact one of the principal untreated human rights abuses in America today.
According to extensive research in numerous prisons, nearly one-quarter of all prisoners fall victim to sexual pressuring, attempted sexual assaults and rapes during their incarceration. One in 10 will be the victims of rapes, and two-thirds of those have been victimized, on average, nine times during their incarceration. When young people are incarcerated with adults, they are sexually assaulted five times more frequently than when they are confined with other juveniles.
Rodney Hulin Jr. was one such inmate. Handed his first prison sentence at the age of 17 for setting fire to a neighbor's fence, the inexperienced, slight inmate was repeatedly raped in prison almost immediately upon arrival. He begged authorities to move him to a juvenile facility or otherwise protect him.
Despite the fact that his examination by prison doctors verified that Rodney had been raped, he was put back in general population and essentially told to fend for himself. When he was violated again, Rodney hanged himself in his cell.
A broad coalition is supporting bipartisan legislation to address the epidemic of prison rape. Sens. Edward M. Kennedy (D-Mass.) and Jeff Sessions (R-Ala.) and Reps. Frank Wolf (R-Va.) and Bobby Scott (D-Va.) have introduced the Prison Rape Reduction Act of 2002 to address this issue in a manner that is both effective and federalism-friendly. Supporters span the political spectrum, from Charles Colson and Gary Bauer to the NAACP and from Human Rights Watch to the Southern Baptist Convention.
Following extensive research into prison rape, any prison system where the incidence of rape is more than 20 percent greater than the national norm will lose federal prison funds unless its administrator can explain the steps being taken to reduce the incidence of prison rape. All too often, rape serves as a form of prison control, and corrections directors pay no price for high rates of prison rape. The prospect of being hauled off to Washington to explain their systems' abuses will serve as a powerful incentive for previously indifferent prison administrators to this problem to come up with effective solutions.
Another aspect of the bill cuts federal grants to prison accrediting bodies unless they ask serious questions about staff training, screening systems, whistle-blower protection, confidentiality of complaints and other relatively easy and low-cost ways to curb prison rape. Right now, prison systems can have their accreditation yanked for not having enough lawbooks in their libraries, but there are no serious standards specifically aimed at preventing prison rape.
Finally, the act creates a commission modeled on the National Gambling Commission that would conduct comprehensive hearings, culminating in standards for the reduction of prison rape. These standards would apply to all state prison systems within one year, unless states opted out of them through legislation. Within three years of the bill's passage, every state would be forced to address the horror of prison rape.
All of this would be accomplished employing only modest means. The bill imposes no state mandates -- something the federal government has every right to do since, by an 8 to 1 vote, the Supreme Court held that deliberate indifference to prison rape violates the Constitution's prohibition against cruel and unusual punishment.
Six hundred thousand inmates -- a population larger than the District of Columbia's -- will return to our communities next year. While only one in 10 of them will have received drug treatment while incarcerated, nearly one in four will have been raped or pressured to have sex against his will.
Prison rape is no joke. It's a human rights violation of major proportions that needs to be immediately addressed. Because it is counterproductive to return prisoners to society more damaged than when they entered, and because it debases us all to turn a blind eye to anyone's rape, it's time to legislate in this long-neglected arena.
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